In the wake of the California Supreme Court’s ruling in In Re Shaputis, 53 Cal. 4th 192 (Cal. 2011) [PLN, Aug. 2012, p.16], lower courts in California continue to struggle with the issue of whether a denial of parole predicated on “lack of insight” is supported, in any given case, by the requisite “some evidence” of the prisoner’s current dangerousness.

In April 2013, the Court of Appeal, First Appellate District reiterated its previously stated view that “an inmate’s lack of insight into the causes of his criminal conduct cannot rationally be inferred from his inability to remember the conduct where ... he acknowledges his factual, legal and moral responsibility for the criminal act, and has expressed genuine remorse.”

The appellate court characterized the view of the parole board that “an inmate unable to recollect commission of his offense cannot understand the factors that caused him to commit it” as, variously, “irrational,” “purely speculative” and “guesswork.”

The issue arose in the case of James Charles Stoneroad, a Native American who, in 1986, while extremely intoxicated, murdered the 17-year-old son of his long-time girlfriend and also tried to kill her. Convicted of second-degree murder, Stoneroad was sentenced to a term of 15 years to life, consecutive to an 11-year term for attempted murder and weapons enhancements. Believing he deserved to be punished, he did not appeal his convictions.

Stoneroad became eligible for parole in 2002. He was denied parole at that time, and again in 2006. The parole board told him to 1) stay discipline free; 2) get self-help; 3) earn reports of positive behavior, known as “chronos”; 4) learn a trade; 5) get therapy; and 6) obtain a GED. Another parole hearing was scheduled for 2010.

Stoneroad complied with all of the parole board’s requirements except for getting his GED – a deficiency which the board ignored at the 2010 hearing. But his substantial compliance was of little use, as the parole board instead fixated, for the first time, on his inability to fully recall committing his offense.

Noting that Stoneroad had a history of alcoholic blackouts and that nothing in the record called into question the authenticity of either his lack of recall or his remorse, the court rejected the parole board’s unsupported theory effectively equating lack of recall with “lack of insight.”

The appellate court summarized its lengthy decision by stating, “A factually indefinable deficiency in perception and understanding that involves a significant aspect of an inmate’s criminal conduct, and has some rational tendency to show he poses an unreasonable risk of danger, may show an inmate unsuitable for parole. But it is not enough to establish that the insight is deficient in some specific way; there must additionally be some connection between the deficiency relied upon and the conclusion of current dangerousness.”

The Court of Appeal, with one judge dissenting, found that “The requisite connection is not present in this case. [Stoneroad’s] inability to recall commission of the ... offense does not, ipso facto, indicate he constitutes a threat to public safety.”